What To Do Before and After
From – Missouri Lawyers Weekly
October 9, 2000
By: Leigh Joy Carson
The client tells you that she is concerned that her soon to be ex-husband will kidnap the children. Even worse, the client calls and tells you that his ex-wife has not returned the children after visitation, her house is empty and the telephone has been turned off. What do you do? This article is intended to be a primer of sorts; of course, every case is different, but set forth below is some basic information to give you a starting point.
Evaluating The Threat
When a client expresses a concern about parental kidnapping, the first step is to assess the seriousness of the threat. There are several factors to consider. First and foremost, evaluate any threats that have been made by the suspected parent to take the child. Get as much detail about the threat as possible. Make sure to understand the context in which it was made and the detail given. A calm statement by the other parent that she intends to take the children to Memphis, Tenn., where her best friend lives is much different that a sobbing parent wailing that if she loses custody she will go far away with the children and your client will never see them again.
Second, examine the parent’s general pattern of behavior and apparent respect for rules. A history of criminal convictions or even arrests, a dishonorable discharge from the military, an unstable job history or a pattern of disrupted personal relationships are all a cause for concern, as is a pattern of non-compliance with the custody or financial provisions of the judgment.
Third, explore whether kidnapping the child is financially realistic. Consider whether the parent has the financial means to support himself or herself and the child or has friends or family that will help to do so.
Finally, consider the allegations made about your client by the other parent. A parent who suspects abuse, particularly sexual abuse, may be prepared to make almost unimaginable sacrifices for the child to prevent what is perceived as a mortal threat from your client.
Even if you believe that the threat of a kidnapping is not serious, you can give the client some advice that may reassure him or her and, in the event that the child is taken, be helpful to the client is gaining the return of the child.
It is crucial that the client have a clear, recent photograph of the child. With a young child, a school picture taken in the fall may not be sufficient in the spring or summer. Likewise, a list of distinguishing marks such as scars and birthmarks (or tattoos) is essential. The client should have an up-to-date notation of height and weight of the child and a full-body photograph. Many police departments offer fingerprinting of children. As basic as it seems, the client should know the social security number of the child and the other parent.
If possible, the client should keep a list of the names and last known telephone numbers and addresses of family members and friends of the other parent who might provide assistance to the abducting parent or your client in the event of a kidnapping. In addition, if anyone outside of the family has shown an increased or unusual interest in the child, the client should keep note of that person’s identifying information (name, address, appearance).
In every case in which the client has a concern about kidnapping, he or she should contact the United States State Department to “flag” the child’s passport. If such action is taken, if the child does not have a passport, a request for a passport will be denied absent a notarized consent from the client. If the child does have a passport, he or she will not be allowed to leave the country without signed documentation from the client. This is not foolproof, however, as the checking that is done at the United States-Mexico border is sporadic and although the Canadian authorities have grown much more conscientious, it is not a guaranteed stop there.
A practice pointer: Remember that the state courts have no authority to order the federal government not to issue a passport to a child. Rather, the proper remedy to request is an order preventing a parent from acting to request a passport (or, if your client wishes to take the child out of the country and needs a passport that has been flagged, you need a court order compelling the other party to release the passport).
Kidnapping is a crime. Suspected kidnapping must be reported to the authorities immediately. Both the local police where the client lives and the Federal Bureau of Investigation must be notified. The local police may tell the client that they will contact the FBI when it is appropriate, but the client should call the FBI anyway. The client needs to feel like he or she is taking action, and this will help.
The client should specifically request the police to put out a “Be On the Look Out” or “BOLO” bulletin. The client should also ask that the child be entered into the National Crime Information Center Missing Persons File. There is no waiting period for children under the age of 18 to be included on this list. The client should ask the police to contact the National Center for Missing and Exploited Children to issue a “broadcast fax” to law enforcement agencies all over the country. Finally, the police, prosecutor or a judge may request that the Office of Child Support Enforcement, Federal Parent Locator Service be utilized to find the parent. Neither you nor your client can ask for this help – the request to use this service must be made by an authorized person such as a prosecutor, police officer or judge.
The client should contact the National Center for Missing and Exploited Children. This is an extraordinarily helpful clearinghouse of information and support, and they can assist with distribution of a photograph of the child (including on their website). They can also make referrals to local agencies that can help.
The client should talk to local law enforcement about enlisting the assistance of the media. If the police are not helpful in that regard, call the media yourself or have the client call. Do not limit yourself: call the television stations, the radio stations and the newspapers.
Refusal to Return The Child
The simplest kidnapping is a refusal to return the child after scheduled visitation or temporary visitation. The client knows where the child is, but the other parent refuses to return the child. If it is during the school year and the child goes to school, the client should pick up the child with or without the police and proceed to court to obtain injunctive relief. Of Course, this also constitutes contempt, and the court has the power to affect the custody provisions of a judgment in a contempt proceeding.
If the client is unable to secure the child, an application should be made for a writ of habeas corpus and/or a warrant in lieu of writ of habeas corpus. Remember that a writ of habeas corpus is an order to “produce the body” and the proceeding is one in which the person with custody of the child is ordered to appear, with the child, and show cause why the child should not be returned. Such cause may be that the child will be abused or kidnapped if returned, and if your client is the one withholding the child, he or she should have as much evidence as possible to support his or her position; including a call to the child abuse hotline and medical or psychological evaluation and/or treatment of the child.
If the client is concerned that the parent who has the child will disappear after being served with a writ of habeas corpus, a request may be made for a warrant in lieu of writ of habeas corpus. Such an order requires the immediate pick-up of the child by law enforcement authorities. If such an order is sought, be certain to coordinate with law enforcement and child welfare officials in the jurisdiction where the warrant is to be executed. It is likely that the police will not take custody of the child, so the juvenile court and the local Division of Family Services should be part of the planning process for service and execution of the warrant.
The failure or refusal to return a child at the end of court-ordered visitation or temporary custody constitutes the crime of interference with custody if there is a court order regarding custody in place (§S6S.1S0 RSMo) and you should talk with the warrant officer in the county where the incident occurred about whether charges will be filed. In many jurisdictions, such charges are unlikely to be filed. You should know the general guidelines followed in the counties where you practice so the client does not develop unrealistic expectations about criminal prosecution.
The refusal to return a child at the end of temporary custody or visitation can be the basis for an order that the non-custodial parent’s rights be supervised and the refusal “to produce the child for temporary custody and visitation can be a basis for a transfer of primary custody. Advise the client to keep detailed notes of such events, irrespective of whether the parent is seeking time with the child or withholding it. Of course, the preferred reaction to concerns about the other parent having time with the child is to proceed to court and seek appropriate relief. A client who attempts to obtain legal relief for his or her concerns about the child spending time with the other parent and loses should be advised in detail of the ramifications of kidnapping or withholding the child, including possible criminal charges, contempt and/or modification of the custody order.
Perhaps the most challenging kidnapping cases are those that involve the taking of the child to a foreign country. The priority in such cases is locating the child. Local law enforcement can report the child as missing to INTERPOL and request a search. Passport Control should be contacted to determine whether a passport has been issued for the child and the wrongful taking of the child reported. The local prosecutor has the authority to request the United States Postal Service to trace the source of mail sent by the abducting parent to addresses in the United States.
Once the child has been located, a determination must be made if the country where the child is located is a signatory to the Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 October 1980, commonly called the Hague Convention. This treaty, which the United States and a number of other countries are signatories, covers situations where a child has been removed from one member country to another.
Assistance in international kidnapping cases is readily available through the United States State Department. The beginning of the request for return of the child under the Hague Convention is a contact by the State Department to the central authority in the country where the child is believed to be located. This is a formal procedure that must be done by the United States government.
The U.S. State Department has an Office of Children’s Issues that can perform a “welfare and whereabouts” visit once the child is located to assess the well-being of the child.
There are several defenses to return of a child under the Hague Convention: (1) the wrongful removal of the child took place more than 12 months prior to the commencement of the proceedings seeking return; (2) the parent seeking the return of the child was not actually exercising custody rights (this includes primary custody, temporary custody or visitation) at the time of removal; (3) a “grave risk” to the child from being returned (this is not interpreted to be danger from the parent seeking return but danger from genocide or war), such risk shown by clear and convincing evidence; or (4) the child is more than 16 years of age.
When a child is kidnapped, it is frightening for both the client and the attorney. There are tremendous resources out there, and both attorney and client should avail themselves of those, including those on the internet. The key is to educate yourself and your client, plan your attack and attack your plan.